View source for Clear and present danger

{{short description|Free speech doctrine in US constitutional law}}
{{other uses}}
[[File:Oliver Wendell Holmes Jr circa 1930-edit.jpg|thumb|right|200px|The concept of "clear and present danger" is a rationale for the limitation of free speech originated in a majority opinion written in 1919 by Supreme Court Justice Oliver Wendell Holmes.]]
'''Clear and present danger''' was a doctrine adopted by the [[Supreme Court of the United States]] to determine under what circumstances limits can be placed on [[First Amendment to the United States Constitution|First Amendment]] freedoms of speech, press, or assembly. Created by Justice [[Oliver Wendell Holmes Jr.]] to refine the [[bad tendency]] test, it was never fully adopted and both tests were ultimately replaced in 1969 with ''[[Brandenburg v. Ohio]]''{{'}}s "[[imminent lawless action]]" test.

==History==
{{See also|First Amendment to the United States Constitution#Speech critical of the government|label 1=First Amendment issues related to speech critical of government}}
Before the 20th century, most restrictions on free speech issues in the United States were imposed to [[prior restraint|prevent certain types of speech]]. Although certain kinds of speech continue to be prohibited in advance,<ref>{{Cite web |title=Prior Restraint |url=https://www.law.cornell.edu/wex/prior_restraint |access-date=2022-06-18 |website=LII / Legal Information Institute |language=en}}</ref> dangerous speech started to be punished after the fact in the early 1900s, at a time  when US courts primarily relied on a doctrine known as the ''[[bad tendency|bad tendency test]]''.<ref name=RCL>Rabban, pp 132&ndash;134, 190&ndash;199.</ref> Rooted in English [[common law]], the test permitted speech to be outlawed if it had a tendency to harm public welfare.<ref name=RCL/>

Antiwar protests during World War I gave rise to several important free speech cases related to sedition and inciting violence.  In the 1919 case ''[[Schenck v. United States]]'', the Supreme Court held that an antiwar activist did not have a First Amendment right to advocate [[draft resistance]].<ref name="Killian, p 1093">Killian, p 1093.</ref><ref>''Schenck v. United States'', 249 U.S. 47 (1919).</ref>  In his majority opinion, Justice [[Oliver Wendell Holmes Jr.]] introduced the ''clear and present danger test'', which would become an important concept in First Amendment law
{{blockquote|The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a '''clear and present danger''' that they will bring about the substantive evils that the [[United States Congress]] has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.}}

In ''[[Frohwerk v. United States]]'' (1919) Justice Holmes summarized comments critical of U.S. wartime policies written by a [[journalist|newspaperman]] and stated about these comments the following: "It may be that all this might be said or written even in time of war in circumstances that would not make it a crime. We do not lose our right to condemn either measures or men because the country is at war."<ref name="20231215FSCMTSU">{{cite web |last1=Parker|first1=Richard |title=Frohwerk v. United States(1919) |url=https://firstamendment.mtsu.edu/article/frohwerk-v-united-states/ |publisher=Free Speech Center at Middle Tennessee State University |date=December 15, 2023|access-date=February 2, 2024 |archive-url=https://web.archive.org/web/20240202095835/https://firstamendment.mtsu.edu/article/frohwerk-v-united-states/ |archive-date=February 2, 2024}}</ref> This statement "represents an important addendum to the original explication of the clear and present danger test in that it specifies that even during war, courts should regard criticism of government policies and officials as protected speech."<ref name="20231215FSCMTSU" />

The ''Schenck'' decision did not formally adopt the clear and present danger test.<ref name="Killian, p 1093"/> Holmes later wrote that he intended the clear and present danger test to refine, not replace, the bad tendency test.<ref name=Dunlap/><ref>Rabban, pp 285&ndash;286.</ref> Although sometimes mentioned in subsequent rulings, the ''clear and present danger test'' was never endorsed by the Supreme Court as a test to be used by lower courts when evaluating the constitutionality of legislation that regulated speech.<ref name=K60>Killian, pp 1096, 1100.<br>Currie, David P., ''The Constitution in the Supreme Court: The Second Century, 1888–1986'', University of Chicago Press, 1994, p 269, {{ISBN|9780226131122}}.<br>Konvitz, Milton Ridvad, ''Fundamental Liberties of a Free People: Religion, Speech, Press, Assembly'', 	Transaction Publishers, 2003, p 304,  {{ISBN|9780765809544}}.<br/>Eastland,  p 47.</ref><ref>The Court adopted the [[imminent lawless action]] test in ''[[Brandenburg v. Ohio]]'', 395 U.S. 444 (1969), which some commentators view as a modified version of the clear and present danger test.</ref>

The Court continued to use the bad tendency test during the early 20th century in cases such as 1919's ''[[Abrams v. United States]]'', which upheld the conviction of antiwar activists who passed out leaflets encouraging workers to impede the war effort.<ref>''Abrams v. United States'', 250 U.S. 616 (1919).<br/>The bad tendency test was also used in ''Frohwerk v. United States'', 249 U.S. 204 (1919); ''Debs v. United States'', 249 U.S. 211 (1919); and  ''Schaefer v. United States'', 251 U.S. 466 (1920).<br/>See Rabban, David, "Clear and Present Danger Test", in ''The Oxford Companion to the Supreme Court of the United States'', p 183, 2005, {{ISBN|9780195176612}} .</ref>  In ''Abrams'', Holmes and [[Louis Brandeis|Justice Brandeis]] dissented and encouraged the use of the clear and present test, which provided more protection for speech.<ref>Killian, p. 1094.<br/>Rabban, p 346.<br>Redish, p 102.</ref>  In 1925's ''[[Gitlow v. New York]]'',  the Court made the First Amendment applicable against the states and upheld the conviction of Gitlow for publishing the "[[Left Wing Manifesto#"Left Wing Manifesto" issued by the Left Wing National Council|Left wing manifesto]]".<ref>''Gitlow v. New York'', 268 U.S. 652 (1925).</ref> ''Gitlow'' was decided based on the bad tendency test, but the majority decision acknowledged the validity of the clear and present danger test, yet concluded that its use was limited to ''Schenck''-like situations where the speech was not specifically outlawed by the legislature.<ref name=Dunlap/><ref>Redish, p 102.<br/>Kemper, p 653.</ref>

Brandeis and Holmes again promoted the clear and present danger test, this time in a concurring opinion in 1927's ''[[Whitney v. California]]'' decision.<ref name=Dunlap>Dunlap, William V., "National Security and Freedom of Speech", in Finkelman (vol 1), pp 1072–1074.</ref><ref>''Whitney v. California'' 274 U.S. 357 (1927).</ref>  The majority did not adopt or use the clear and present danger test, but the concurring opinion encouraged the Court to support greater protections for speech, and it  suggested that  "imminent danger"{{spaced ndash}}a more restrictive wording than "present danger"{{spaced ndash}}should be required before speech can be outlawed.<ref>Redish pp 102&ndash;104.<br/>Killian, p 1095.</ref> After ''Whitney'', the bad tendency test continued to be used by the Court in cases such as ''[[Stromberg v. California]]'', which held that a 1919 California statute banning red flags was unconstitutional.<ref>''Stromberg v. California'', 283 U.S. 359 (1931).<br/>Killian, p 1096.<br/>Another case from that era that used the bad tendency test was ''[[Fiske v. Kansas]]'', 274 U.S. 380 (1927).</ref>

The clear and present danger test was invoked by the majority in the 1940 ''[[Thornhill v. Alabama]]'' decision in which a state anti-picketing law was invalidated.<ref name=K60/><ref>''Thornhill v. Alabama'', 310 U.S. 88  (1940).</ref> Although the Court referred to the clear and present danger test in a few decisions following ''Thornhill'',<ref>Including ''[[Cantwell v. Connecticut]]'', 310 U.S. 296 (1940): "When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious.... [W]e think that, in the absence of a statute narrowly drawn to define and punish specific conduct as constituting a clear and present danger to a substantial interest of the State, the petitioner's communication, considered in the light of the constitutional guarantees, raised no such clear and present menace to public peace and order as to render him liable to conviction of the common law offense in question."</ref><ref>And ''Bridges v. California'', 314 U.S. 252 (1941): "And, very recently [in ''Thornhill''] we have also suggested that 'clear and present danger' is an appropriate guide in determining the constitutionality of restrictions upon expression....  What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious, and the degree of imminence extremely high, before utterances can be punished."</ref>  the bad tendency test was not explicitly overruled,<ref name=K60/>  and the clear and present danger test  was not applied in several subsequent free speech cases involving incitement to violence.<ref>Antieu, Chester James, ''Commentaries on the Constitution of the United States'', Wm. S. Hein Publishing, 1998, p 219, {{ISBN|9781575884431}}. Antieu names ''[[Feiner v. New York]]'', 340 U.S. 315 (1951); ''[[Chaplinsky v. New Hampshire]]'' 315 U.S. 568 (1942); and ''Kovacs v. Cooper'', 335 U.S. 77 (1949).</ref> The importance of freedom of speech in the context of "clear and present danger" was emphasized in ''[[Terminiello v. City of Chicago]]'' (1949),<ref>''[[Terminiello v. City of Chicago]]'', {{ussc|337|1|1949}}</ref> in which the Supreme Court noted that the vitality of civil and political institutions in society depends on free discussion.<ref name="Terminiello, at 4">''Terminiello'', at 4</ref> Democracy requires free speech because it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.<ref name="Terminiello, at 4"/> Restrictions on free speech are permissible only when the speech at issue is likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.<ref name="Terminiello, at 4"/> Justice [[William O. Douglas]] wrote for the Court that "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."<ref name="Terminiello, at 4"/>

===''Dennis v. United States''===
[[File:Fred m vinson.jpg|thumb|right|180px|Chief Justice Fred M. Vinson reaffirmed the applicability of the doctrine of "clear and present danger" in upholding the 1950 conviction of Communist Party USA leader Eugene Dennis.]]

In May 1950, one month before the appeals court heard [[Oral argument in the United States|oral arguments]] in the ''[[Dennis v. United States]]''  case, the Supreme Court ruled on free speech issues in  ''[[American Communications Association v. Douds]]''. In that case, the Court considered the clear and present danger test, but rejected it as too mechanical and instead introduced a [[balancing test]].<ref>Eastland,  p 47.<br/>Killian, p 1101.<br />''American Communications Association v. Douds'' 339 U.S. 382 (1950).</ref> The federal appeals court heard oral arguments in the CPUSA case on June&nbsp;21–23, 1950. Judge [[Learned Hand]] considered the clear and present danger test, but his opinion adopted a balancing approach similar to that suggested in ''American Communications Association v. Douds''.<ref name=Dunlap/><ref>Eastland, pp 96, 112&ndash;113.<br/>Sabin, p 79.<br/>O'Brien, pp 7–8.<br/>Belknap (1994), p 222.<br/>Walker, p 187.<br/>Belknap, Michal, ''The Vinson Court: Justices, Rulings, and Legacy'', ABC-CLIO, 2004, p 109, {{ISBN|9781576072011}}.<br/>Kemper, p 655.</ref>

The defendants appealed the Second Circuit's decision to the Supreme Court in ''[[Dennis v. United States]]''.  The 6–2 decision was issued on June 4, 1951, and upheld Hand's decision.  Chief Justice [[Fred M. Vinson|Fred Vinson's]] opinion stated that the [[First Amendment to the United States Constitution|First Amendment]] does not require that the government must wait "until the putsch is about to be executed, the plans have been laid and the signal is awaited" before it interrupts seditious plots.<ref>Belknap (1994), p 223. Vinson quoted by Belknap.</ref> In his opinion, Vinson endorsed the balancing approach used by Judge Hand:<ref name=Dennis>[http://supreme.justia.com/cases/federal/us/341/494/case.html ''Dennis v. United States'' - 341 U.S. 494 (1951)]  Justia. Retrieved March 20, 2012.</ref><ref>Killian, p 1100.<br/>Kemper, pp 654&ndash;655.</ref><ref>{{cite web |last1=Steiner|first1=Ronald  |title=Gravity of the Evil Test |url=https://firstamendment.mtsu.edu/article/gravity-of-the-evil-test/ |publisher=Free Speech Center at Middle Tennessee State University |date=September 19, 2023|access-date=February 2, 2024 |archive-url=https://web.archive.org/web/20240202103151/https://firstamendment.mtsu.edu/article/gravity-of-the-evil-test/ |archive-date=February 2, 2024}}</ref>

{{blockquote|Chief Judge Learned Hand ... interpreted the [clear and present danger] phrase as follows: 'In each case, [courts] must ask whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words.}}

==Importance==
Following ''[[Schenck v. United States]]'', "clear and present danger" became both a public metaphor for [[First Amendment to the United States Constitution|First Amendment]] speech<ref name="Derrick2007">{{cite journal |last=Derrick |first=Geoffrey J. |title=Why the Judiciary Should Protect First Amendment Political Speech During Wartime: The Case for Deliberative Democracy |journal=Lethbridge Undergraduate Research Journal |volume=2 |issue=1 |year=2007 |url=http://www.lurj.org/article.php/vol2n1/firstamend.xml |issn=1718-8482 |url-status=dead |archive-url=https://web.archive.org/web/20080422191505/http://www.lurj.org/article.php/vol2n1/firstamend.xml |archive-date=2008-04-22 }}</ref><ref>{{Cite journal |last=Tsai |first=Robert L. |title=Fire, Metaphor, and Constitutional Myth-Making |journal=Georgetown Law Journal |volume=93 |pages=181–239 |year=2004 |issn=0016-8092 }}</ref> and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be [[constitutional]] if it can be shown that the language it prohibits poses a "clear and present danger".  However, the "clear and present danger" criterion of the ''Schenck'' decision was replaced in 1969 by ''[[Brandenburg v. Ohio]]'',<ref>Brandenburg v. Ohio, {{ussc|395|444|1969}}.</ref> and the test refined to determining whether the speech would provoke an "[[imminent lawless action]]".

The vast majority{{Who|date=May 2017}} of legal scholars have concluded that in writing the ''Schenck'' opinion, Justice Holmes never meant to replace the "[[bad tendency (legal)|bad tendency]]" test which had been established in the 1868 English case ''[[Hicklin test|R. v. Hicklin]]'' and incorporated into American jurisprudence in the 1904 Supreme Court case ''[[John Turner (anarchist)|U.S. ex rel. Turner v. Williams]]''.<ref>{{cite web|url=https://caselaw.findlaw.com/us-supreme-court/194/279.html|title=FindLaw's United States Supreme Court case and opinions}}</ref> This is demonstrated by the use of the word "tendency" in ''Schenck'' itself, a paragraph in ''Schenck'' explaining that the success of speech in causing the actual harm was not a prerequisite for conviction, and use of the bad-tendency test in the simultaneous ''[[Frohwerk v. United States]]'' and ''[[Debs v. United States]]'' decisions (both of which cite ''Schenck'' without using the words "clear and present danger").

However, a subsequent essay by [[Zechariah Chafee]] titled "Freedom of Speech in War Time" argued despite context that Holmes had intended to substitute clear and present danger for the bad-tendency standard a more protective standard of free speech.<ref name="Chafee1919">{{cite journal |last=Chafee |first=Zechariah |year=1919 |title=Freedom of Speech in Wartime |journal=Harvard Law Review |volume=32 |issue= 8|pages=932&ndash;973 |doi=10.2307/1327107 |jstor=1327107 }}</ref>  Bad tendency was a far more ambiguous standard where speech could be punished even in the absence of identifiable danger, and as such was strongly opposed by the fledgling [[American Civil Liberties Union]] and other libertarians of the time.

Having read Chafee's article, Holmes decided to retroactively reinterpret what he had meant by "clear and present danger" and accepted Chafee's characterization of the new test in his dissent in ''[[Abrams v. United States]]'' just six months after ''Schenck''.<ref>''Abrams v. United States'', {{ussc|250|616|1919}}.</ref> ''Schenck'', ''Frohwerk'', and ''Debs'' all resulted in unanimous decisions, while ''Abrams'' did not.

===Brandenburg===

For two decades after the ''Dennis'' decision, free speech issues related to advocacy of violence were decided using balancing tests such as the one initially articulated in ''Dennis''.<ref>Including cases such as  ''Konigsberg v. State Bar of California'', 366 U.S. 36 (1961).<br/>Killian, pp 1101&ndash;1103.</ref>  In 1969, the court established stronger protections for speech in the landmark case ''[[Brandenburg v. Ohio]]'',  which held that  "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action".<ref>''Brandenburg v. Ohio'', 395 U.S. 444 (1969).</ref><ref>Redish pp 104&ndash;106.<br/>Killian, pp 1109&ndash;1110.</ref>  ''Brandenburg'' is now the standard applied by the Court to  free speech issues related to advocacy of violence.<ref>E.g. in cases such as ''Hess v. Indiana'', 414 U.S. 105 (1973).<br/>Redish, p 105.<br/>Kemper, p 653.</ref>

==See also==
*[[Imminent lawless action]]
*[[List of United States Supreme Court cases, volume 395]]
*[[Shouting fire in a crowded theater|Shouting ''fire'' in a crowded theater]]
*[[Threatening the president of the United States]]
*''[[Abrams v. United States]]'', {{ussc|250|616|1919}}
*''[[Brandenburg v. Ohio]]'', {{ussc|395|444|1969}}
*''[[Chaplinsky v. New Hampshire]]'', {{ussc|315|568|1942}}
*''[[Dennis v. United States]]'', {{ussc|341|494|1951}}
*''[[Feiner v. New York]]'', {{ussc|340|315|1951}}
*''[[Hess v. Indiana]]'', {{ussc|414|105|1973}}
*''[[Korematsu v. United States]]'', {{ussc|323|214|1944}}
*''[[Masses Publishing Co. v. Patten]]'', (1917)
*''[[Sacher v. United States]]'',  {{ussc|343|1|1952}}
*''[[Schenck v. United States]]'', {{ussc|249|47|1919}}
*''[[Terminiello v. City of Chicago]]'', {{ussc|337|1|1949}}
*''[[Whitney v. California]]'', {{ussc|274|357|1927}}

==Notes==
{{reflist|30em}}

==References==
* Eastland, Terry, ''Freedom of Expression in the Supreme Court: The Defining Cases'', Rowman & Littlefield Publishers, 16. August 2000, {{ISBN|978-0847697113}}
* [[Paul Finkelman|Finkelman, Paul]] (Editor), ''Encyclopedia of American Civil Liberties'' (two volumes),  CRC Press, 2006,  {{ISBN|978-0415943420}}
* Kemper, Mark, "Freedom of Speech", in Finkelman, Vol 1, p 653&ndash;655.
* Killian, Johnny H.; Costello, George; Thomas, Kenneth R., ''The Constitution of the United States of America: Analysis and Interpretation'',   	Library of Congress, Government Printing Office, 2005, {{ISBN|978-0160723797}} <ref>{{cite web|url=https://constitution.congress.gov/browse/ |title=Browse &#124; Constitution Annotated &#124; Congress.gov &#124; Library of Congress |publisher=Constitution.congress.gov |date= |accessdate=2022-04-03}}</ref>
* Rabban, David, ''Free Speech in Its Forgotten Years'', Cambridge University Press, 1999, {{ISBN|978-0521655378}}
* [[Martin Redish|Redish, Martin H.]], ''The Logic of Persecution: Free Expression and the McCarthy Era'', Stanford University Press, 2005, {{ISBN|978-0804755931}}

==Further reading==

* Chester James Antieau, "The Rule of Clear and Present Danger: Scope of Its Applicability," ''Michigan Law Review,'' vol. 48, no. 6 (April 1950), pp.&nbsp;811–840. [https://www.jstor.org/stable/1284433 In JSTOR]
* Louis B. Boudin, "'Seditious Doctrines' and the 'Clear and Present Danger' Rule: Part I," ''Virginia Law Review,'' vol. 38, no. 2 (Feb. 1952), pp.&nbsp;143–186. [https://www.jstor.org/stable/1069474 In JSTOR]
* Louis B. Boudin, "'Seditious Doctrines' and the 'Clear and Present Danger' Rule: Part II," ''Virginia Law Review,'' vol. 38, no. 3 (April 1952), pp.&nbsp;315–356. [https://www.jstor.org/stable/1069631 In JSTOR]
* Mark Kessler, "Legal Discourse and Political Intolerance: The Ideology of Clear and Present Danger," ''Law & Society Review,'' vol. 27, no. 3 (1993), pp.&nbsp;559–598. [https://www.jstor.org/stable/3054105 In JSTOR]
* Fred D. Ragan, "Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919," ''Journal of American History,'' vol. 58, no. 1 (1971), pp.&nbsp;24–45.  [https://www.jstor.org/stable/1890079 In JSTOR]
* Bernard Schwartz, "Holmes versus Hand: Clear and Present Danger or Advocacy of Unlawful Action?" ''Supreme Court Review," vol. 1994, pp.&nbsp;209–245. [https://www.jstor.org/stable/3109648 In JSTOR]

==External links==
*[http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Schenck_v_US First Amendment Library entry on ''Schenck v. United States'']
*[http://www.firstamendmentcenter.org/faclibrary/libraryexpression.aspx?topic=famous_phrases First Amendment Library entry on Famous First Amendment Phrases: Origins]

{{US1stAmendment Freedom of Speech Clause Supreme Court case law|state=collapsed}}

[[Category:Censorship in the United States]]
[[Category:Freedom of expression]]
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[[Category:First Amendment to the United States Constitution]]
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[[Category:Oliver Wendell Holmes Jr.]]